“The following shall be prohibited as incompatible with the internal market: all agreements between undertakings, decisions by associations of undertakings and concerted practices which may affect trade between Member States and which have as their object or effect the prevention, restriction or distortion of competition within the internal market,…”
“105. In that regard, first, it is worth bearing in mind that, according to the case-law, the criteria of coordination and cooperation necessary for determining the existence of a concerted practice are to be understood in the light of the notion inherent in the FEU Treaty provisions on competition, according to which each economic operator must determine independently the policy which he or she intends to adopt on the internal market… 106. While it is correct to say that this requirement of independence does not deprive economic operators of the right to adapt themselves intelligently to the existing or anticipated conduct of their competitors, it does, nonetheless, strictly preclude any direct or indirect contact between such operators by which an undertaking may influence the conduct on the market of its actual or potential competitors or disclose to them its decisions or intentions concerning its own conduct on the market where the object or effect of such contact is to create conditions of competition which do not correspond to the normal conditions of the market in question, regard being had to the nature of the products or services offered, the size and number of the undertakings involved and the volume of that market… 107. The Court of Justice has therefore held that the exchange of information between competitors is liable to be incompatible with the competition rules if it reduces or removes the degree of uncertainty as to the operation of the market in question, with the result that competition between undertakings is restricted… 108. In particular, an exchange of information which is capable of removing uncertainty between participants as regards the timing, extent and details of the modifications to be adopted by the undertakings concerned in their conduct on the market must be regarded as pursuing an anticompetitive object… 109. The General Court has already held that the provision of sensitive business information, such as an exchange of future price increases, has – where that information is given to one or more competitors – an anticompetitive effect inasmuch as the independence of the undertakings concerned in their conduct on the market is modified as a result. Where such practices occur, the Commission is not obliged to prove their anticompetitive effects on the relevant market if they are capable in an individual case, having regard to the specific legal and economic context, of resulting in the prevention, restriction or distortion of competition within the internal market… 110. Secondly, the concept of a concerted practice, as it derives from the actual terms of Article 101(1) TFEU, implies, in addition to the participating undertakings concerting with each other, subsequent conduct on the market and a relationship of cause and effect between the two… 111. In that regard, the Court of Justice has held that, subject to proof to the contrary, which the economic operators concerned must adduce, it must be presumed that the undertakings taking part in the concerted action and remaining active on the market take account of the information exchanged with their competitors in determining their conduct on that market. In particular, the Court of Justice has concluded that such a concerted practice is caught by Article 101(1) TFEU, even in the absence of anticompetitive effects on the market… 112. It is thus apparent from the case-law that the provision of sensitive business information, such as the exchange of information regarding pricing, including future pricing, and information regarding supply and demand, including in relation to future supply and demand (in particular production volumes or increases or decreases in shipments), makes it possible to reduce uncertainty as to the conduct of competitors on the market and to create conditions of competition which do not correspond to the normal conditions of the market and, consequently, gives rise to a concerted practice having as its object the restriction of competition, within the meaning of Article 101(1) TFEU.”
“At the lunch with Ronan Dunne (RD), RD raised a concern about value in the market, and concerns about the pricing strategy behind 4G. He was keen to emphasise that the opportunity of 4G was to establish a pricing structure that recognised its enhanced value. He raised a difficult scenario whereby discounting on 3G by other competitors and/or retail channels could lead quickly to a reassessment of that premium pricing in order to respond, and that would devalue the market. He believed the risk of this was particularly acute with the indirect channels, for example Carphone Warehouse, and that an excess of supply in the distribution market contributed to that risk. He appeared to suggest, you believe, that such discounting could be de-risked if that excess of supply was dealt with in some way. RD talked about making some ‘unilateral steps’, and talked about playing some ‘big cards’. Your concern was that the implication of that might have been to suggest they were willing to pull some volume from the indirect channels with a view to protecting that value, but wanted to de-risk that volume being taken up by EE. While you found the discussion surprising, you believe you were careful not to respond on those points, other than to talk in general about your public strategy for EE, to increase market share and to grow your business. You have said to the extent that you understood what he was trying to say, which at the time was difficult to piece together, you did not agree with any of his suggestions or take up the point in any way so as to suggest agreement or acceptance of any proposals. [Mr Blendis then referred to the calls made to Mr Swantee on 10 and 12 October.] I have said that in broad terms these conversations raise the prospect of collusion, and anti-competitive agreements between you, which is extremely serious. While you have made it clear you have no intention of taking direction from these conversations, nor did you believe you gave or implied any complicity or agreement to those propositions, and indeed that you purposely avoided any impression that you were open to coordination of behaviour, we have since considered whether you should have taken further steps to rebut those proposals, and whether we should now do so, informally or formally. The options we discussed were; (a) An informal conversation with all parties, to express your concerns in retrospect at the possible intentions of the communications, and to firmly rebut any notion of complicity or agreement with those proposals; (b) A more formal meeting, possibly with lawyers, to present the same feedback and clarify our position, and also warn that further dialogue or communication in that vein would inevitably force us to make a more formal disclosure to the competition authorities; or (c) A disclosure of some form directly to the competition authorities; or (d) Document these conversations, monitor their behaviour going forward, and prepare a more robust response should any such conversations occur again in the future. I have since spoken to external competition legal experts, at Slaughter & May, and in conclusion of those discussions my advice is that on the basis of the discussions as reported, it would be acceptable to adopt option (d). Option (c) would mean that we would have to make admissions to the competition authorities of unlawful behaviour, and I do not believe that is appropriate given the conversations and circumstances. Option (a) and (b) are something we could think about going forward, but the risk is that this causes a protective response from those parties, possibly even some form of whistleblowing process themselves, which would put us in a more difficult position (having not taken that initiative ourselves). Given that no indication has been given to the parties involved that we were in any way intending to follow up on their suggestions or approaches, and in fact have not done so (clearly with the published pricing this week not reflecting any agreement with those proposals), the risks of any action being warranted against you or EE for your part in those discussions is contained and moderated. To the extent that you have flagged them to me, you have adopted the right course of action, and the record of that, and our agreed plan going forward, is sufficient for the time being. I will follow up with a high level script for you to review, which can form the basis of your response for any future similar calls or meetings. I would also suggest that you avoid any scenarios where this is more likely to occur, in particular one to one meetings without other colleague involvement or legal participation.”
“Indications of intentions to encourage certain collaborative behaviours included references to actions by o2 that would otherwise be highly sensitive and confidential to the o2 business, and could only have been made to influence decisions by EE to support such actions. For example with reference to value in the distribution space, o2 was indicated to be ‘willing to play some big cards’.”
“197. Taking all that into account, I do not think that Mr Swantee fundamentally misunderstood or misinterpreted what Mr Dunne was saying at the time. Mr Swantee is clearly highly intelligent, he had immense experience of the telecommunications industry, and he gave his evidence very frankly. Mr Dunne made no mention of P4u, nor did he indicate that O2 were contemplating an exit from an indirect retailer. But, on balance, I consider that he was sounding out Mr Swantee to see whether, if O2 reduced its reliance on the indirect channel, EE might support that move to ‘preserve value’ in the market. The fact that Mr Dunne did not spell this out in clear terms does not, in my judgment, preclude a finding that this was an invitation to collude: there need not be precision or specificity if he was conveying a message which his competitor could understand.”
“Our gross connections through Indirects were very high potentially as a result of EE in dispute. Reassuring Olaf [Mr Swantee] given our impending move may be helpful to strengthen the Operators resolve against the Indirects.”
“…although Mr Swantee could not tell to what degree O2 might reduce volume through the indirect channel, and whether that would involve P4u or CPW or both, he had correctly understood the thrust of Mr Dunne’s remarks.”
“200. I accept Mr Swantee’s evidence that he did not say anything during the lunch that could have given Mr Dunne encouragement that EE would go along with what Mr Dunne was suggesting. He essentially did not engage and remained passive while Mr Dunne was speaking, until the conversation moved on to [a different topic]. In that regard, I reject the submission of Mr MacLean KC, made in his oral reply in closing, that in a meeting ‘there is inherently a degree of reciprocity’. In my view, that is not necessarily the case as regards every topic which one side might raise. And Mr Swantee was clearly so alarmed and uneasy about what Mr Dunne was saying that, when the opportunity arose, he started recording it, and went with that recording to see EE’s General Counsel afterwards. That is not the conduct of someone who is prepared to go along with an anti-competitive proposal. I find that Mr Swantee had absolutely no such intention and he gave no such indication.”
“…Although I have found that Mr Dunne’s remarks implied that O2 may seek by a ‘big move’ to reduce its reliance on the indirect channel and implied that he sought reassurance or support from EE, I have concluded that the remarks were too vague to remove uncertainty in EE as to O2’s future conduct and I do not think that the circumstances were such that Mr Dunne could have inferred from Mr Swantee’s silence any form of acquiescence or a consensus to cooperate.”
“225. Moreover, it does not appear that Mr Dunne was left with the impression that EE was objecting or wholly uninterested. If he had felt that Mr Swantee was clearly opposed to any kind of anticompetitive exchange, Mr Dunne would hardly have called him some weeks later seeking to exchange confidential information regarding their companies’ negotiations with Apple: paras 170-171 above. It would also be inconsistent with Mr Evans’ text message to Mr Dunne of2 January 2013 suggesting that they should reassure Mr Swantee as part of strengthening ‘the resolve against the indirects’: para 198.c) above.”
“During my meeting with Ronan [Dunne] on 27th January I witnessed some concerning potential anti-competitive behaviour. We were discussing a 3 month extension to our existing deal to discuss further commercial terms. Ronan gave one of the reasons for not wanting to do this was that Cesar Alierta Izuel (CEO, Telefónica) had given commitments to Vettorio Colao (CEO, Vodafone) and Eva Castillo Sanz (CEO, Telefónica Europe) the same commitments to Phillip Humm (Regional CEO, Vodafone Europe). He went on to say that he was less sure of the intentions of EE with respect to independent distribution because Olaf Swantee (CEO, EE) was not inclined to discuss EE distribution plans. I believe this behaviour to be inappropriate but do not think we should do anything at this time at risk of damaging network relationships.”
“It is clear from the account of the development of Vodafone UK’s strategy that as at January 2014 Vodafone UK was not seriously contemplating an end to its arrangements with either P4u or CPW. It was seeking to reduce its reliance on the indirect retailers and to strengthen sales through its direct outlets, but that was well-known to be the objective of all the MNOs. However, the decision by Vodafone UK to seek an exclusive supply agreement with CPW and exit from P4u came several months later in 2014, in the circumstances described above. And if Vodafone did not disclose such information to O2/Telefónica, I do not consider that O2/ Telefónica would have disclosed its confidential commercial strategy to Vodafone. It is appropriate to repeat the quotation from P4u’s Re-Amended Particulars of Claim, with which I agree: ‘… it is inherently unlikely that an undertaking would provide a competitor with confidential and commercially sensitive information and/or a commitment as to its future conduct on the market unless it had received and/or expected to receive corresponding information and/or commitments in return.’” ‘… it is inherently unlikely that an undertaking would provide a competitor with confidential and commercially sensitive information and/or a commitment as to its future conduct on the market unless it had received and/or expected to receive corresponding information and/or commitments in return.’”
“Hello Philipp, I would like to talk to you for 5-10 minutes max regarding a topic for the UK market. When can I call you (possibly today or tomorrow)? Thanks, Benoit Scheen (Orange Europe).”
“Hello Philipp, after review I will unfortunately not be able to come to London before several weeks. Could we then organize a ‘secured’ call with both of us using a new prepaid number. If we are both using a new prepaid number, the call will be secured. I could have a prepaid number being ready for tonight (to have a potential call tomorrow). Would this be a suitable solution for you? Regards, Benoit Scheen”
“Hello benoit, not knowing what you want to discuss I feel not comfortable making these sorts of arrangements. If there is topic we need to discuss/decide suggest to arrange for a call together with a competition lawyer. Sorry best philipp” “Hello Philipp, I do not want to force you in a setup that you don’t find suitable. I wanted to address a potential interesting joint opportunity on the UK market in an informal way. So, I don’t think that the presence of a lawyer would be suitable at this stage. And let me re-assure you, my intends were positive and constructive. But I guess that we will have to look at it in a different way (as potential decisions will have to be taken in the coming weeks) …It is maybe a missed opportunity for our respective companies …Regards, Benoit.”
“Mr Scheen eventually accepted that in their 5 minute telephone conversation on2 April 2014 , he would have told Mr Humm, at least in general terms, what he wanted to discuss. It seems to me inconceivable that after the initial text, Mr Humm would not have asked what was the ‘topic for the UK market’ which Mr Scheen wanted to talk about, in which case Mr Scheen would have answered the question, although I accept that he may not have entered into many details. Mr Humm accepted in cross-examination that he must have learnt enough from Mr Scheen about the topic to think that it was worthwhile having a meeting in London (where Mr Humm was based) in short order.”
“Neal [Milsom] wants us to get this deck completed but the focus is P4U, he wants us to be 100% sure of the impact if P4U fold earlier than expected ie In the next couple of months. The expectation is that Voda are about to pull out…”
“If I had genuinely believed, or expected, that Vodafone were about to pull out of P4U, I would have spent the whole remainder of August 2014 intensively preparing for that scenario, and I would have been in a much better position and much better prepared, rather than being caught off-guard as I was, when I learned on29 August 2014 that Vodafone would be withdrawing from P4U and that P4U were at risk of entering administration.”
“CPW was offering both substantially increased volumes over their previous agreements and substantially improved financial terms. The volumes to which CPW was ready to commit (supported by a liquidated damages clause) were fundamental to Vodafone UK and EE’s modelling. And the financial terms of course materially improved the customer NPV [net present value]. It was only when Vodafone UK and EE had secured a satisfactory deal with CPW that they felt able to exit from P4u.”
“(i) The object of the inclusion of concerted practices in the prohibition is to bring within Article [101] a form of coordination between undertakings which, short of the conclusion of an agreement properly so-called, knowingly substitutes practical co-operation between the undertakings for the risks of competition. A concerted practice does not have all the elements of an agreement but may arise out of coordination which becomes apparent from the behaviour of the participants. Parallel behaviour may amount to strong evidence of a concerted practice if it leads to conditions of competition which do not correspond to the normal conditions of the market: Imperial Chemical Industries Ltd v Commission of the European Communities [1972] ECR 619 (“Dyestuffs”). (ii) The requirement of independent determination of policy on the market on the part of competitors strictly precludes any direct or indirect contacts between competing undertakings, the object or effect of which is either to influence the conduct on the market of an actual or potential competitor or to disclose to such a competitor the course of conduct which the undertaking has decided to adopt or contemplates adopting on the market: Suiker Unie and Others v Commission of the European Communities [1975] ECR 1663. (iii) The prohibition on concerted practices applies to all collusion between undertakings whatever the form it takes. An agreement arises from the expression by the participating undertakings of their joint intention to conduct themselves in a specific way. Concerted practices include forms of collusion having the same nature as agreements which are distinguishable from agreements by their intensity and the forms in which they manifest themselves: Commission v Anic Partecipazioni[1999] ECR I-4125 . (iv) A decision on the part of a manufacturer which constitutes unilateral conduct of that undertaking escapes the Chapter I prohibition (though if the undertaking has a dominant position, it might be caught by the Chapter II prohibition). The concept of an agreement centres around the existence of a concurrence of wills between at least two parties, the form in which it is manifested being unimportant so long as it constitutes the faithful expression of the parties’ intention: Bayer v Commission[2000] ECR II-3383 , upheld by the European Court of Justice, in Bundesverband der Arzneimittel-Importeure eV v Bayer AG; Bayer AG v Commission of the European Communities[2004] ECR I-23 . (v) Although the concept of a concerted practice implies the existence of reciprocal contacts, that requirement may be met where one competitor discloses its future intentions or conduct on the market to another when the latter requests it or, at the very least, accepts it: Cimenteries CBR v Commission of the European Communities[2000] ECR II-491 . (vi) The fact that only one of a number of competing undertakings present at a meeting reveals its intentions is not sufficient to exclude the possibility of an agreement or concerted practice: Tate & Lyle plc and Others v Commission of the European Communities[2001] ECR II-2035 .”
“Counsel for all the appellants submitted that many of the observations in the cases from which these propositions are drawn need to be understood in the light of the particular facts. They pointed out that it is just as essential to a concerted practice as it is to an agreement that there be a consensus between the two or more undertakings said to be parties to the agreement or concerted practice. That is true, but concerted practices can take many different forms, and the courts have always been careful not to define or limit what may amount to a concerted practice for this purpose.”
“225. Moreover, it does not appear that Mr Dunne was left with the impression that EE was objecting or wholly uninterested. If he had felt that Mr Swantee was clearly opposed to any kind of anticompetitive exchange, Mr Dunne would hardly have called him some weeks later seeking to exchange confidential information regarding their companies’ negotiations with Apple: paras 170-171 above. It would also be inconsistent with Mr Evans’ text message to Mr Dunne of2 January 2013 suggesting that they should reassure Mr Swantee as part of strengthening ‘the resolve against the indirects’: para 198.c) above.”
“…Mr Dunne’s references to taking ‘unilateral steps’ or playing ‘some big cards’ were wholly vague, and even if understood as concerning some action to reduce reliance on the indirect retailers, it was wholly unclear what those steps, or ‘cards’, might be. In my judgment this cannot reasonably be seen as having benefited EE by removing uncertainty as regards O2’s strategy or conduct on the market.”
“46. In my opinion also, the concept of a concerted practice does imply reciprocity. A concerted action is necessarily the result of a consensus. However, the level of formalisation of that consensus should not be subject to overly rigid requirements, since this would undermine the versatility inherent in the concept of a concerted practice. 47. In particular, reciprocity should equally encompass tacit approval. 48. However, the possibility of inferring tacit approval, and therefore of establishing the existence of a consensus to cooperate rather than compete, depends on the context of the communication. 49. First, where an undertaking receives information relating to an illicit initiative and does not oppose it, its acquiescence in that initiative may be inferred from the absence of response, provided that the circumstances are propitious to the formation of a tacit consensus. The lack of opposition to an illicit communication is reprehensible because, under certain circumstances, mere lack of reaction from the addressee will lead the other party or parties to believe that the addressee subscribes to the illicit initiative and will comply with it [a reference to the Aalborg Portland decision at [82] is footnoted here; see [151] below]. Therefore, in order to infer knowing participation of the addressee in a concerted practice, the context of interaction must be such that the addressee may be deemed to appreciate that the competitor will consider its silence as an approval and will rely on mutual action, even in the absence of response.”
“… subject to proof to the contrary, which it is for the economic operators concerned to adduce, there must be a presumption that the undertakings participating in concerting arrangements and remaining active on the market take account of the information exchanged with their competitors when determining their conduct on that market…”
“81. According to settled case law, it is sufficient for the Commission to show that the undertaking concerned participated in meetings at which anti-competitive agreements were concluded, without manifestly opposing them, to prove to the requisite standard that the undertaking participated in the cartel. Where participation in such meetings has been established, it is for that undertaking to put forward evidence to establish that its participation in those meetings was without any anti-competitive intention by demonstrating that it had indicated to its competitors that it was participating in those meetings in a spirit that was different from theirs. 82. The reason underlying that principle of law is that, having participated in the meeting without publicly distancing itself from what was discussed, the undertaking has given the other participants to believe that it subscribed to what was decided there and would comply with it. 83. The principles established in the case law cited at [81] also apply to participation in the implementation of a single agreement. In order to establish that an undertaking has participated in such an agreement, the Commission must show that the undertaking intended to contribute by its own conduct to the common objectives pursued by all the participants and that it was aware of the actual conduct planned or put into effect by other undertakings in pursuit of the same objectives or that it could reasonably have foreseen it and that it was prepared to take the risk. 84. In that regard, a party which tacitly approves of an unlawful initiative, without publicly distancing itself from its content or reporting it to the administrative authorities, effectively encourages the continuation of the infringement and compromises its discovery. That complicity constitutes a passive mode of participation in the infringement which is therefore capable of rendering the undertaking liable in the context of a single agreement.”
“46. In the third place, it must be pointed out that a travel agency may rebut the presumption that it participated in a concerted practice by proving that it publicly distanced itself from that practice or reported it to the administrative authorities. In addition, according to the case-law of the Court, in a case such as that at issue in the main proceedings, which does not concern an anticompetitive meeting, public distancing or reporting to the administrative authorities are not the only means of rebutting the presumption that a company has participated in an infringement; other evidence may also be adduced with a view to rebutting that presumption (see, to that effect, judgment in Total Marketing Services v Commission, C‑634/13 P, EU:C:2015:614, paragraphs 23 and 24). 47. As regards the examination of whether the travel agencies concerned publicly distanced themselves from the concertation at issue in the main proceedings, it must be noted that, in particular circumstances such as those at issue in the main proceedings, it cannot be required that the declaration by a travel agency of its intention to distance itself be made to all of the competitors which were the addressees of the message at issue in the main proceedings, since that agency is not in fact in a position to know who those addressees are. 48. In that situation, the referring court may accept that a clear and express objection sent to the administrator of the E-TURAS system is capable of rebutting that presumption. 49. As regards the possibility of rebutting the presumption of participation in a concerted practice by means other than public distancing or reporting it to the administrative authorities, it must be held that, in circumstances such as those at issue in the main proceedings, the presumption of a causal connection between the concertation and the market conduct of the undertakings participating in the practice, referred to in paragraph 33 of the present judgment, could be rebutted by evidence of a systematic application of a discount exceeding the cap in question.” (Emphasis supplied.)
“The Court of Justice went on, however, (at para 33) to distinguish the presumption arising under art 101(1) of a causal connection between a concertation and the market conduct of the undertakings participating in the practice. That presumption, it emphasised, followed from art 101(1) and consequently formed an integral part of the EU law which the national court was required to apply. The Court of Justice then went on (at paras 46-49) to address in detail the nature of the evidence that would be sufficient to rebut the presumption.”
“In our view, the fact that the Court of Justice in Eturas addressed, as a question of EU law, what evidence was capable of rebutting the presumption of participation in a concerted practice provides the key to resolving the present issue.”
“…it is for the undertaking concerned to prove that the concerted action did not have any influence whatsoever on its own conduct on the market… The proof to the contrary must therefore be such as to rule out any link between the concerted action and the determination, by that undertaking, of its conduct on the market.”
“In my view the judge was not entitled to find for the claimant on the basis of the third man theory. It is fundamental to our adversarial system of justice that the parties should clearly identify the issues that arise in the litigation, so that each has the opportunity of responding to the points made by the other. The function of the judge is to adjudicate on those issues alone. The parties may have their own reasons for limiting the issues or presenting them in a certain way. The judge can invite, and even encourage, the parties to recast or modify the issues. But if they refuse to do so, the judge must respect that decision. One consequence of this may be that the judge is compelled to reject a claim on the basis on which it is advanced, although he or she is of the opinion that it would have succeeded if it had been advanced on a different basis. Such an outcome may be unattractive, but any other approach leads to uncertainty and potentially real unfairness.”
“…departure from a pleading will cause prejudice, it is in the interests of justice that the other party should be entitled to insist that this is not permitted unless the pleading is appropriately amended. That then introduces, in its proper context, the issue of whether or not the party in question should be permitted to advance a case which has not hitherto been pleaded…”
“The present case … is not one of a party seeking to depart from his pleaded case, but one where the parties addressed in their evidence and submissions the cases that had been pleaded, but the judge decided the case on a basis that had neither been pleaded nor canvassed before him. In our system of civil litigation that is impermissible, and a misunderstanding of the judge’s function which is to try the issues the parties have raised before him…”
“Judges may sometimes think—and may even sometimes be right—that their own theory better fits the facts than that of either party, but if it is wholly outside the scope of the pleaded issues, that is nothing to the point, and to decide a case on a basis that has not been explored in evidence or addressed in submissions is likely to leave at least one, if not both, parties with a profound and justified sense of unfairness.”
“These problems are all concerned with the interests of justice and, in particular, with circumstances which cause prejudice to the losing party. The common sort of prejudice which is to be avoided is that a new point has arisen in such a way that the losing party was not given a proper chance to call evidence or ask questions which could have addressed it. That is why the function performed by pleadings, lists of issues and so on, which is to give notice of and define the issues, is an important one; but is also why a judge can always permit a departure from a formally defined case where it is just to do so. It is also why the judge’s function is to try the issues the parties have raised before them, rather than to reach a conclusion on the basis of a theory which never formed part of either party’s case. By placing the emphasis on prejudice, the point I am making is that the modern approach to the definition of the issues requires judges to adopt a pragmatic approach in line with the overriding objective and not seek to be governed by unnecessary formality, provided always that it is just not to do so.”
“…before drawing inferences the Court must be careful to ensure that there is no equally plausible and innocent explanation for the fragmentary evidence on which reliance is being placed. To do otherwise would be to reverse the burden of proof as regards serious allegations. Altogether, I consider that the Court has to consider the evidence in the round, looking at the particular items of evidence relied on in context.”
“7. The function, however, of the court on hearing this appeal is not to impose sanctions or to investigate the reasons why the delay occurred. The function of this court on this appeal, which is principally brought against the judge’s findings of fact, is to consider whether any of those findings of fact should be set aside and a retrial ordered. Findings of fact are not automatically to be set aside because a judgment was seriously delayed. As in any appeal on fact, the court has to ask whether the judge was plainly wrong. This high test takes account of the fact that trial judges normally have a special advantage in fact-finding, derived from their having seen the witnesses give their evidence. However there is an additional test in the case of a seriously delayed judgment. If the reviewing court finds that the judge’s recollection of the evidence is at fault on any material point, then (unless the error could not be due to the delay in the delivery of judgment) it will order a retrial if, having regard to the diminished importance in those circumstances of the special advantage of the trial judge in the interpretation of evidence, it cannot be satisfied that the judge came to the right conclusion. This is the keystone of the additional standard of review on appeal against findings of fact in this situation. To go further would be likely to be unfair to the winning party. That party might have been the winning party even if judgment had not been delayed.”
“Risk that RD [Mr Dunne] has gone back and taken the conversation as a green light”
“[Mr Dunne] doesn’t accept he said anything that terrible but acknowledges he asked some questions & posed some scenarios and Olaf didn’t respond. It won’t happen again, and they appreciate the way we’ve dealt with it.” (Emphasis supplied.)
“O2 UK withdraw from P4U in January 2014 from both upgrades and gross as adequate volumes are being achieved through the direct channels allowing for greater bargaining power with remaining direct (assumes Vodafone follows suit) and existing P4U assets could be purchased for lower MV than current price.”
“However, since this does not involve disclosure of future strategy I do not think it supports even the most general allegation of anti-competitive conduct pleaded at para 131(b)(iv). But even if that occurred (and I emphasise that I make no finding since that would be pure speculation) [i.e. even if future strategy was disclosed, which is what para 131(b)(iv) concerned], I consider that such unilateral passing of information by Telefónica Europe to Vodafone could have no causative effect on O2’s own conduct. And I find that any presumption that it had an effect on Vodafone’s conduct is rebutted by the fact that Vodafone UK’s decision to leave P4u was not reached until many months later, in mid-2014, after significant developments in the UK market and extensive and detailed negotiation between Vodafone UK and P4u.”
“Additional volume from Voda at only 300…”
“I regard this projection as inconsistent with an exit by Vodafone UK as well as EE from P4u in 2015, which would obviously have precipitated an immediate collapse of P4u (as indeed occurred).”
“5. Tribunals are free to draw, or to decline to draw, inferences from the facts of the case before them using their common sense. Whether any positive significance should be attached to the fact that a person has not given evidence, or to the lack of contemporaneous documentation, depends entirely on the context and particular circumstances: Efobi v Royal Mail Group Ltd[2021] UKSC 33 ;[2021] 1 WLR 3863 .”
“First, if it is found that the destruction of the evidence was carried out deliberately so to as hinder the proof of the plaintiff’s claim, then such finding will obviously reflect on the credibility of the destroyer. In such circumstances it would enable the Court to disregard the evidence of the destroyer in the application of the principle... Second, if the Court has difficulty in deciding which party’s evidence to accept, then it would be legitimate to resolve that doubt by the application of the presumption. But, thirdly, if the judge forms a clear view, having borne in mind all the difficulties which may arise from the unavailability of material documents, as to which side is telling the truth, I do not accept that the application of the presumption can require the judge to accept evidence he does not believe or to reject evidence he finds to be truthful.”